Sunday, November 25, 2012

REGSTRATION OF LAND



                                                      REGISTRATION OF LAND 

What is Registration of Title and Registration of Documents

A)    An Introduction to the registration of documents and circumstances merits and Demerits under the Documents ordinance.

The law relating to registration is contained in the Registration of Documents Ordinance No. 23 of 1927. Chapter III of the Ordinance provides about the registration of instruments affecting land. Sinnethamby J.[1], declared; “Our Registration Ordinance provides for the registration of documents and not for registration of titles. The intention of this Ordinance prevents the frauds through the registration of relating documents.

B) Prevention of the frauds through the registration ordinance

In Appu Singho vs. Leelawathi[2]  in this case court defined the frauds as “…….the act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest.”  And prevention of the frauds ord. s.2 also provides that every transaction and purchase must executed before a notary public otherwise such execution held to be a void[3]. Same approach followed in,  S.7 (1), (4) which are attempt to prevent the frauds on the part of defendant, and seeks to find out the true owner through the registration of valid documents.

s.7 (1) provides that, unregistered instruments are declared to be void against subsequent registered instruments. In other words registered instrument shall prevail over the unregistered instrument. This enactment seeks to prevent the frauds through the registration of document. When we compare this position with 7 (4), Registration of an instrument, shall not cure any defect in the instrument or confer upon it any effect or validity. In other words, if any defect found on registered document, then it will loses its priority. But according to s.7 (1) registered document still valid even it contained any defects. This is a contradict situation in Registration of document............................

C) Case law application in regard to the preventing the frauds through the Priority approach

In Lairis Appu V. Tennakoon Kumarihamy[4] it was expressly stated that registered document will get priority over the unregistered document. But contradict view taken in Massilamany V Santiago[5], held that the earlier un-registered deed is not affected in any way, but it has to take second place in priority.

In Mohamad Ali V Weerasuriya[6], decided very doubtful manner, the un-registered instrument is lose its priority but it shall not affect its rights, those are still remain valid. This is very confusing decision because whether rights and priority considered as different elements. Again in Muthuramen V Massilamany[7] it was held that unregistered instrument is void, and registered document will push out away any unregistered instruments of prior date for all purposes.

Notwithstanding In Silva V Fernando[8] court held that registered instrument is not valid because it involves illegal transaction. & same approach followed in Appu v Disanayake[9]. According to my view the registration of document it does not give any satisfactory solution to prevent the frauds, because even if any defects caused by third party, then registered instrument become an invalid.

The rationale view of the registration of the document considered in Silva V Sarah hamy[10] it was held that the owner has no right to re-convey the Land, if first conveyance of land executed to the valuable consideration to another person. Same approach followed in Sennaiya chetty V Appuhamy[11].

D) Registration of document and prescription. 

The registration of document ordinance preserves the right of prescription. And the principle laid down in Gunsekara V Lewis Appuhamy[12] it was held that unregistered transfer to plaintiff was ineffective in Law, but still plaintiff can claim prescriptive title to the land as against defendant, who possess registered title. P’s prescriptive right shall not deprive by the prior registered owner. Same approach followed in Appuhamy V Goonetilleke registration of a subsequent deed does not interrupt the right of prescription, which had already begun to run in favor of the Plaintiff.

Registration of title[13]
 (a). Registration of the title provides some advantages, than the registration of document. Because in the process of registration of documents, it only considered about the legal validity of the documents placed before its table, but registration of title consider not only about the validity of the documents, also it consider about the cadastral map prepared for that purpose.
(b). According to s.10[14] of the registration of Title Act, considering cadastral map includes exact value, map of survey, and ownership of the land (especially for the taxation), this is merit approach on registration because it gives exact position of the land and ownership whenever dispute arise.
In s.12[15] provides the commissioner of title settlement published the notice in gazette regarding the certified copies of land transaction. Therefore it is a merit point because the publication of relevant documents in Gazette gives an opportunity to preserve the rights of other claimers, who have an interest on land.

 S.13[16] provides that, the commissioner of title settlement shall cause an investigation in order to the find out the true owner. This is merit point in the title act because this investigation examine not only the oral submissions of the parties and also it includes all relevant facts which is important to consider on that point, but there is no similar provision found in document ordinance, which only bother about the validity of the   documents.

(c). One point is noteworthy here, under s.15[17], title of the co-owners of the land, is vested on the hands of one person, who appointed by other co-owners, called as ‘manager’. Therefore the manager holds exclusive title of the land. Therefore claims of the other co-owners are subjected to the interest of the ‘manager’. According to my knowledge this is de-merit point, because “right to ownership” of the other co-owners affected by the registration of title, when we compare this position with registration of documents Ord. which does not affect the ownership of the other co-owners.

(d). S.31[18] gives Absolute ownership (first class ownership) to the titled owner, against other subsequent registered owner, in other words the titled ownership will be consider as an exclusive dominant ownership, where any adverse registered instruments questioned the validity of the titled property. This is also merit position of the title act, because in documents ord. the process of determination of ownership of the property is not very clear, but it is very clear in Title Act.

(e). S.57[19] this is a demerit position of the Title Act, because this section excludes the application of the prescription ordinance in relating to the title act. In other words the absolute or first class ownership is vested on the titled owner is inviolable by the other claims, (already discussed in pg-4 (D)) the documents ordinance preserves the right of prescription[20].

After the titles were registered, in above said manner, certificates of title will grant in the form of (1). Certificates in the form of ownership (2).Certificates in the form of interest or  (3). Certificates of incumbarance. This type of arrangement is absent in registration of documents ord.



Conclusion

I concluding here that, the registration of document provides right of ownership through registering the relevant documents, other hand title act involves an inquiry about the all relevant circumstances of ownership , so registration of the document is reliable one.

When we compare this situation with our Northern and Eastern title registration process, it is unfortunate situation because the unauthorized or unregistered lands may be capture by the government. But it is not easy to registering the title, this registration process called as Bimsaviya’ program, which successfully implemented in Colombo (kirillapone, kalubovila and wellawatta), Negambo. And still there are some attempts available in other parts of srilanka such as Trincomale, Tatnapura, Hambanthota and Galle a special commission is conducting this registration process.

But Tamil National Alliance party opposed to the title registration of the Northern and Eastern parts of SriLanka. According to my view this opposition may justifiable on the ground that the ownership, owners, and property of the Tamils were largely destroyed during the last war, then it is very difficult to identify the ownership of the people and TNA alleged that this is a conspiracy against Tamils, because government seeks to seize the Lands, which are unable to affirm the title to the land.

Another point is noteworthy here an attempt made out to register the title of the lands in 1877 and 1889 through the ordinance No. 4 of 1889. Unfortunately this attempt failed to sustain before the indigenous laws. One hand Kandyan law dominated the rules relating to the land other hand Thesawalamai laws regulate the laws relating to the lands. Therefore previous attempts failed to enshrines the right of ownership accordance with their own laws. 
So fundamental legal questioning point is whether the new attempt to registering Title is preserve the rights of ownership (especially Northern and Eastern People) or not? My answer is Negative.

Notwithstanding day before yesterday Government announced that the registration of the land will be continuing. This is very dangerous situation to the Tamils, on the basis of constitutional aspects because definite territory and people for the self determination process is continuously interrupting through the registration of Land. (When we compare this situation, with separation of Northern & Eastern province)        
                




[1] In Lairis Appu vs. Tennakoon Kumarihamy (61 NLR 97) at page 105
[2] (60 NLR 409).
[3] S.2 of the prevention of the frauds ord. No 7 of 1840.
[4] (61 NLR 97) At page 105.
[5]( 1911) 14 NLR. 292.
[6] (1914) 17 NLR. 417.
[7] (1913) 16 NLR 289
[8] 1920 22 NLR 39.
[9] 1902 6 NLR 267
[10] 1883 Wendt’s report 383
[11] 1885 7 S.C.C. 111.
[12] 1966 69 NLR. 414.
[13] REGISTRATION OF TITLE ACT, NO 21 OF 1998.
[14]  S. 10 of the Registration of title act.
[15] S.12 of the Registration of title act.
[16] S.13 of the registration of title Act. 1998.
[17] S. 15 of the registration of title Act
[18] S.31 of the registration of the title Act.
[19] S. 57 of the registration of the title Act.
[20]  The exclusion of the ‘right of prescription’ affect the owners who has “ut dominus” possession on the Land.